New South Wales Court of Criminal Appeal CITATION : R. v. Folbigg [2003] NSWCCA 17 revised - 30/05/2003 HEARING DATE(S) : 6 February 2003 JUDGMENT DATE : 13 February 2003 JUDGMENT OF : Hodgson JA at 1; Sully J at 36; Buddin J at 37 DECISION : 1. Application dismissed. 2. The fact of the application and the result may be published, but ordered that the reasons not be published until further order. CATCHWORDS : CRIMINAL LAW - EVIDENCE - Accused charged with murder of four children - Plea of not guilty - Defence application for separate trials - Coincidence evidence LEGISLATION CITED : Evidence Act ss.97, 98, 101, 135, 137 Makin v. Attorney-General for NSW [1894] AC 57 Perry v. The Queen (1982) 150 CLR 580 Pfennig v. the Queen (1995) 182 CLR 461 R v. Geering (1849) 18 LJMC 215 R v. Grills (1954) 73 WN(NSW) 303 R v. Joiner [2002] NSWCCA 354 R v. Le [2000] NSWCCA 49 CASES CITED : R v. Leask [1999] NSWCCA 33 R v. OGD (222) 50 NSWLR 443 R v. Phillips [1999] NSWSC 1175 R v. Smith (1915) 11 Cr.App.Rep 229 R v. WRC [2000] NSWCCA 210 Shepherd v. The Queen (1990) 170 CLR 573 Sutton v. The Queen (1983-4) 152 CLR 528 Thompson v. The Queen (1989) 169 CLR 1 W v. The Queen [2001] FCA 1648 PARTIES : Regina Kathleen Megan Folbigg - applicant FILE NUMBER(S) : CCA 60496/02 COUNSEL : Mr. M. Sexton SC with Dr. J. Quilter for Crown Mr. P. Zahra SC with Mr. A. Cook for applicant SOLICITORS : S.E. O'Connor for Crown D.J. Humphries for applicant LOWER COURT Supreme Court JURISDICTION : LOWER COURT SC 70046/02 FILE NUMBER(S) : LOWER COURT Wood CJ at CL JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL CCA 60496/02 SC 70046/02 HODGSON JA SULLY J BUDDIN J Thursday 13 February 2003 REGINA v. Kathleen Megan FOLBIGG Judgment 1 HODGSON JA: The applicant Kathleen Megan Folbigg has been charged with the murder of four of her infant children, namely Caleb, Patrick, Sarah and Laura, and with maliciously inflicting grievous bodily harm to Patrick with intent to do him grievous bodily harm, some four months before his death. 2 The applicant applied for an order that the counts relating to the alleged murders of Caleb, Sarah and Laura be heard individually and separately from the counts relating to Patrick. That application was dismissed by Wood CJ at CL on 29 November 2002. 3 The applicant seeks leave to appeal from that decision. PRIMARY JUDGE'S DECISION 4 Before the primary judge, the Crown opposed the application, on the basis that evidence relating to the deaths of each child, and an apparent life-threatening event (referred to by the primary judge as an ALTE) concerning Patrick, was admissible in relation to each count as tendency evidence under s.97 of the Evidence Act and co-incidence evidence under s.98 of the Act. Appropriate notices complying with s.99 of the Act had been served. The primary judge accepted that contention of the Crown, and it was for that reason that he rejected the application. The applicant contends that the primary judge was in error, and that, in relation to any one charge concerning one child, evidence relating to the deaths or ALTE of other children would not be admissible as tendency or co-incidence evidence. 5 In his judgment, the primary judge noted that the substantial issue in relation to each count was whether the applicant was responsible for the death or ALTE in question, the Crown case being that the applicant asphyxiated each child; and that the medical evidence showed that there were two possibilities to be considered in each case, namely whether the death or ALTE was the result of natural causes or the result of induced or imposed airway obstruction. He noted that in relation to two deaths, the cause of death was originally ascribed, following autopsy, to sudden infant death syndrome (SIDS), an expression used where no pathology or possible cause for the death of an infant has been found, following appropriate post mortem examination. In such cases, the death is regarded as due to natural causes. 6 The primary judge noted that where pathology is found which may provide a possible, although not definitive, reason for death, the practice of pathologists is to give the cause of death as "not ascertained". 7 In his judgment, the primary judge summarised the facts in relation to the deaths and ALTE which seemed, and indeed still seem, not to be in dispute: Caleb Gibson (i) He was born 1 February 1989; (ii) He was born healthy, but he had some difficulty breathing and feeding simultaneously, and he had been diagnosed with transient tachnypnoea prior to his discharge from hospital; (iii) He died on 20 February 1989, aged 19 days; (iv) He was fed by the accused at 1 am, on 20 February 1989; (v) He was found by the accused in his bassinette at 2.50 am, cyanosed and not breathing – the accused was screaming, and this awoke the father, who was asleep; (vi) Caleb was found to be pale, and warm to the touch when seen by ambulance officers; (vii) Post mortem and other medical reports showed: § Laryngeal or inspiratory stridor (floppy or lazy larynx) § No inherent metabolic problems or external signs of injury § Haemosiderin within the lungs which on the medical evidence was not necessarily specific for asphyxia, although it was consistent with it § mottling on the pleural surfaces and congestion in places showing incomplete aeration. (viii) Dr Cummings' autopsy opinion was that death was due to SIDS. Patrick Alan (i) He was born on 3 June 1990; (ii) He was discharged home in good health and appeared to sleep and feed well; (iii) A sleep study at the Mater Hospital, on 14/15 June 1990, was normal; (iv) On 18 October 1990, while aged 4 months, at 3.30 am, the accused's screams woke the father who was asleep – Patrick, then aged 4 months, appeared pale and limp, his breathing was faint and laboured, but he responded to oxygen given by ambulance officers; (v) While in hospital on the following evening he developed a generalised seizure. A CT scan demonstrated hypodense areas in the temporal and occipital lobes and a possible diagnosis of viral encephalitis was mentioned; (vi) He was later diagnosed to be suffering from a major form of epilepsy, a neurological deficit caused by near asphyxiation, and was also found to have cortical blindness; (vii) The accused threatened to leave her husband and Patrick following this event; (viii) The initial hospitalisation was followed by further admissions in relation to seizures, a bout of gastroenteritis, and an oculogyric crisis (that is, an involuntary tonic spasm of extraocular muscles); (ix) Patrick died on 13 February 2001, aged 8 months, that is, within 4 months of the ALTE; (x) At 10 am the accused rang her husband at work and said, "it's happened again"; (xi) Patrick was found in his cot by ambulance officers, with peripheral cyanosis, and without vital signs, although he was still warm to the touch; (xii) A death certificate was issued showing the cause of death to be asphyxia due to airway obstruction and epileptic fits; (xiii) Post mortem examination showed: § Old infarcts and gliosis in the parieto-occipital areas (both cerebral hemispheres) which Dr Bishop and Professor Berry both thought to be secondary to the earlier cardio respiratory arrest; § Hepatic congestion, congested postero-basal dependant segments in both lungs, and enlarged thymus; § No congenital metabolic problems. Sarah Kathleen (i) She was born on 14 October 1992, and was generally a well child, who was said to have been a very loud snorer, who had suffered some apnoea while asleep; (ii) A sleep apnoea blanket was used to monitor her sleeping and to provide an alarm if breathing stopped; (iii) She died on 30 August 1993, aged 10 ½ months; (iv) On 28 August 1993, the accused had moved her to the main bedroom, and had discontinued the use of the sleep apnoea blanket; (v) On the night of 29 August 1993, the accused was angry when Sarah would not settle and at one stage she dumped the child in her husband's lap – eventually Sarah was put to bed by her father in the main bedroom at 10 to 10.30 pm; (vi) At about 1.10 am the father noticed that Sarah and the accused were not in the room; (vii) At 1.30 am the father was awoken by the accused's screams – Sarah was in her cot, cyanosed, with mucus and vomit in her mouth; she was asystolic, and still warm to the touch; (viii) Professor Hilton's opinion, following a post mortem examination, was that the cause of death was SIDS; (ix) Sarah had been treated with antibiotics for a cold; (x) The post mortem examination showed: § Pulmonary congestion and oedema; § Some internal petechiae on the pleura, epicardium and thymus; § No morbid anatomical cause; § Some bacteria (staphylococcus aureus) in the airways; § Uvula unusually congested or possibly haemorrhagic lying anterior to epiglottis. Laura Elizabeth (i) She was born on 7 August 1997; (ii) Laura's sleep and breathing patterns were monitored – A corometrics device being used to monitor her vital statistics, and other data, including room temperature and ventilation; (iii) The monitoring was reduced in August 1998, when Laura was aged 12 months; (iv) In August 1998, the accused threatened to leave home, and gave a letter to her husband advising that the only thing keeping them together was Laura; (v) On 1 March 1999, the accused became angry at about 7 am when Laura was crying, and her husband was about to go to work. This led to an argument; (vi) Laura died on 1 March 1999, aged 19 months; (vii) At 10.30 am on 1 March 1999, the accused took Laura to her husband's place of work, and then home at about 11.00 am; (viii) At 12.05 pm the accused phoned 000 and reported that Laura was not breathing; (ix) Ambulance staff found that Laura was not breathing, in a state of bradycardia, before becoming asystole; cyanosis was evident, and she was warm to the touch. She was taken to hospital but pronounced dead at 12.45 pm; (x) Laura had a recent upper respitory tract infection; (xi) The post mortem examination by Dr Cala showed: § Clear fluid around the nostrils § Some inflammatory changes in the heart consistent with myocarditis, of probably viral origin; § Petechial haemorrhages on the anterior aspect of the suprasternal thymus gland; § Focal haemorrhagic and collapsed lungs; § No congenital metabolic abnormality. (xii) Dr Cala could not determine the cause of death, but excluded SIDS. 8 The primary judge then recorded a number of diary entries made by the applicant upon which the Crown sought to rely, particularly some made following the death of Sarah. The relevant passages of the primary judge's judgment are in pars.[11] to [16], as follows: 11 An earlier entry of 3 June 1990 is also said to have significance, being an entry made on the date that Patrick was born, that is, 15 months after Caleb's death, in so far as the accused wrote: "I had mixed feelings this day. Whether or not I was going to cope as a mother or whether I was going to get stressed out like I did last time . I often regret Caleb & Patrick, only because your life changes so much, and maybe I'm not a Person that likes change. But we will see?" 12 After the death of Sarah, the accused and her husband separated for 4 months between January and April 1995, at which point they were reconciled. 13 During the period when the accused was contemplating a fifth pregnancy, and later awaiting the birth of Laura, the following entries seem to have particular probative value: "18th June 96 – Tues – 10.21am. I'm ready this time. And I know Ill have help & support this time When I think I'm going to loose control like last times Ill just hand baby over to someone else. Not feel so totally alone. getting back into my exercise after will help my state of mind & sleeping wherever possible as well. I have learnt my lesson this time. … 8-9-96 – Sunday – avo. Feel now is a time for us to have another baby. Have finally realised is the right time for me. I have Craig & he wants a child. That I can give him. And I have enough friends now, not to loose it like before. … 30-10-96 – Wednesday 5am I worry that my next child will, suffer my physicological mood swings like the others did. I pray I'm prepared & ready mind wise for this next one. Maybe nature has decided I never will be & it will nevr (sic) happen. … 4-12-96 – Thurs – 4.30am I'm ready this time. But have already decided if I get any feelings of jealousy or anger to much I will leave Craig & baby, rather than answer being as before. Silly but will be the only way I will cope. I think support, & not being afraid to ask for it will be a major plus. Also – I have & will change my attitude & try earnestly not to let anything stress me to the max. I will do things to pamper myself regularly & just deal with things. If I have a clingy baby, then so be it. A cat napper so be it. That will be when I will ask help & sleep whenever I can. To keep myself in a decent mood. I know now that battling wills & sleep depravaision were the causes last time. Fish I've got help – they are relaxing to watch its quite funny. … 1-1-97 9.30 pm Wednesday Another year gone & what a year to come. I have a baby on the way, which means major personal sacrifice for both of us. But I feel confident about it all going well this time. I am going to call for help this time & not attempt to do everything myself any more – I know that that was the main Reason for all my stress before & stress made me do terrible things . … 4.2.97 – Tues morn, 3.30am Still can't sleep. Seem to be thinking of Patrick & Sarah & Caleb. Makes me seriously wonder wether I'm stupid or doing the right thing by having this baby. My guilt of how responsible I feel for them all, haunts me , my fear of it happening again, haunts me. My fear of Craig & I surviving if it did, haunts me as well. I wonder wether having this one, wasn't just a determination on my behalf to get it right & not be defeated by me total inadequate feelings about myself. What sort of mother am I, have I been – a terrible one, that's what it boils down too – that's how I feel & that is what I think I'm trying to conquer with this baby. To prove that there is nothing rong (sic) with me, if other women can do it, so can I. Is that a wrong reason to have a baby. Yes I think so, but its too late to realise now. I'm sure with the support I'm going to ask for I'll get through. What scares me most will be when I'm alone with baby. How do I overcome that? Defeat that? … 17-2-97 – Monday 9.50am [Craig] he should be for me, forever, just because a baby is entering our life makes no difference really, one day it will leave. The others did , but this ones not going in the same fashion . This time I'm prepared & know what signals to watch out for in myself. Changes in mood etc. Help I will get if need be 16-5-97 – Fri morn 2am [Mel] I think that she will be a great help in Preventing me from stressing out as much as I've done in the past. Night time & early mornings such as these will be the worst for me, that's when wishing someone else was awake with me will happen. Purely because of what happened before. Craig says he will stress & worry, but he still seems to sleep okay every night & did with Sarah. I really needed him to wake that morning & take over from me. This time I've already decided If I ever feel that way again Im going to wake him up . … 6.7.97 – Fri Nite. 9.30pm [Life with Craig] Maybe then he will see when, stress of it all is getting to be too much & save me from ever feeling like I did before, during my dark moods . Hopefully preparing myself will mean the end of my dark moods, or at least the ability to see it coming & say to him or someone hey, help I'm getting overwhelmed here, help me out. That will be the key to this babies survival. It surely will. But, enough dwelling, things are different this time, It will all work out for sure." 14 Following the birth of Laura, the accused made further entries, which the Crown suggests are of significant probative value in relation to her involvement in the deaths of the other children. The first of these was written within weeks of the birth of this child: "25.8.97 – Monday nite 8.30pm Scary feelings, I've realised I actually love her & have bonded with her, wish to protect her etc. Maternal instinct, is what they call it. I now know I never had it with the others . Monitor is a good idea. Nothing can happen without the monitor knowing & since I'm not game enough to not plug it in, because theyd want to know why I hadn't, Everything will be fine this time." 15 It was followed by other entries which appear to repeat the theme of the earlier entries concerning the earlier deaths, but which the Crown relies on as showing an increase in her irritability, resentment of the child, in so far as she was required to give up her gymnasium attendances, and anger directed towards the child herself. Of particular relevance are the following entries: "20.9.97 – Sat morn 3.15am Sleep, who needs it. Yes I'm getting a little irritable now… Am getting very stressed, because I can't depend on Craig for any real help or support… [Craig] How dare he complain to me about lack of sleep – what the fuck would he know. Think he'll have to sleep in other room. Just so He's not disturbed – selfish prick. Well now I know where I stand. … 25.10.97 10pm – Sat nite Just watched video of Sarah, little upsetting, but she did some funny things…I think I am more patient with Laura. I take the time to figure out what is rong now instead of just snapping my cog…Looking at the video, Sarah was boyish looking. Laura has definite feminine features, they are chalk & cheese. And truthfully just as well. Wouldn't of handled another one like Sarah. She saved her life by being different. … 3.11.97 – Monday avo – 6pm Why is it when I'm so tired I'm feeling sick – shitty I can't sleep very depressed with myself at the moment. Feeling deprived of my freedom… Someone's awake got to go, Lost it with her earlier. Left her crying in our bedroom & had to walk out – that feeling was happening . And I think it was because I had to clear my head & prioritise. As I've done in here now. I love her I really do I don't want anything to happen . … 8th Nov- 97 – Monday nite 10pm Had a bad day today. Lost it with Laura a couple of times. She cried most of the day. Why do I do that. I must learn to read her better. She's pretty straight forward. She either wants to sleep or doesn't. Got to stop placing so much importance on myself. Much try to release my stress somehow. I'm starting to take it out on her . Bad move. Bad things & thoughts happen when that happen . It will never happen again . … 9.11.97 – Sunday nite 8.45pm Craig was pretty drunk Friday nite; In his drunken stupor he admitted that he's not really happy. There's a problem with his security level with me & he has a morbid fear about Laura – he well I know theres nothing wrong with her. Nothing out of ordinary any way . Because it was me not them. Think I handle her fits of crying better than I did with Sarah – I've learnt to .ace (sic) getting to me, to walk away & breath in for a while myself. It helps me cope & figure out how to help her. With Sarah all I wanted was her to shut up. And one day she did . … 31.12.97 11pm Getting Laura to be next year ought to be fun. She'll realise a Party is going on. And that will be it. Wonder if the battle of the wills will start with her & I then . We'll actually get to see. She's a fairly good natured baby – Thank goodness, it has saved her from the fate of her siblings. I think she was warned. … 20.1.97 (Sic) [should be 1998] – Tuesday 8am The gym was a pivotal part of me, And now because I can't go without taking Laura its put a damper on everything. I've had my one & only escape taken away from me. … 28.1.98 – Wednesday 5.30pm Very depressed with myself, angry & upset. I've done it. I lost it with her . I yelled at her so angrily that it scared her, she hasn't stopped crying. Got so bad I nearly (poss) purposely dropped her on the floor & left her. I restrained enough to put her on the floor & walk away. Went to my room & left her to cry. Was gone probably only 5 mins but it seemed like a lifetime. I feel like the worst mother on this earth. Scared that she'll leave me now. Like Sarah did. I knew I was short tempered & cruel sometimes to her & she left. With a bit of help. I don't want that to ever happen again. I actually seem to have a bond with Laura. It can't happen again . I'm ashamed of myself. I can't tell Craig about it because he'll worry about leaving her with me. Only seems to happen if I'm too tired her moaning, bored, wingy sound, drives me up the wall. I truly can't wait until she's old enough to tell me what she wants. … Friday Nite 6/3/98 – 10pm Laura not well, really got on my nerves today, snapped & got really angry, but not nearly as bad as I used to get. " 16 The emphasis in the passages extracted from these diaries, has been added, to indicate matters which would appear to be capable of giving rise to admissions in relation to the earlier deaths, and to a build up of stress before the death of Laura. They are said to derive further potential support from the evidence of Craig Folbigg, whose statement speaks of the accused's tendency to become stressed, and to lose her temper and control with her children. The diary entires, it is submitted, support the inference that it was this circumstance which led to their demise, that the accused was aware that she had been personally responsible for their deaths, and that, during the last pregnancy, and after the birth of Laura, she was concerned that these moods would re-emerge, and endanger Laura. 9 The primary judge then summarised reports by medical experts which the Crown proposed to rely on (Professor Berry, Dr. Carla, Dr. Ophoven, Professor Herdson, Professor Ouvrier, and Dr. Beal), and which the applicant proposed to rely on (Professors Byard and Busutill), as follows: Caleb 22 Dr Ophoven, a paediatric forensic pathologist said, in her report: " It is my opinion to a reasonable degree of medical certainty [an expression which she equated to proof beyond reasonable doubt] that Caleb Folbigg did not die of the condition known as Sudden Infant Death Syndrome. It is also my opinion that Caleb's death is most consistent with death by suffocation ." 23 Professor Peter Berry, a Professor of Paediatric Pathology, noted: "Faced with a similar case [as Caleb Folbigg's death] today, I would not give the cause of death as SIDS because of the finding of haemosiderin in the lungs." 24 Professor Peter Herdson, a Professor of Pathology, said: " In my opinion, [in relation to Caleb Folbigg's death], the findings taken in isolation leave the cause of death undetermined, but apparently consistent with Sudden Infant Death Syndrome ." 25 Professor Busuttil, a Professor of Forensic Medicine and consultant Pathologist, said in relation to Caleb's death: "5.9 IN SUMMARY · This death should not have been attributed to SIDS. · There was a congenital clinically-diagnosed but not pathologically confirmed condition which could have led to upper airways obstruction. · The presence of some HAEMOSIDERIN in the lungs of this child raises the possibility of imposed airways obstruction. · Imposed airways obstruction cannot be completely excluded. · No other metabolic congenital anomaly was found in this child". Patrick 26 Dr Ophoven said: "Patrick's sudden, profound and irreversible brain damage is consistent with and diagnosed as a hypoxic episode. Hypoxia in this case is synonymous with asphyxia and unfortunately heralds the fatal event in retrospect. No natural disease or process has been identified to explain this event, nor was there a recurrence of an acute life threatening event observed by anyone except his mother. In my opinion, the cause of Patrick's cardio-respiratory arrest is the same process that killed him… In my opinion the cause of death should be listed as…suffocation." 27 Professor Berry said: "Patrick's initial collapse was never explained. Such 'near-miss' events resulting in brain damage are a cause for concern because the window of opportunity to find a child in extremis and affect the resuscitation is very short, probably a matter of only a few minutes. This raises the question that the person who finds the baby may have been present when the collapse occurred and may have been in its cause. Such 'acute life threatening events' are not part of the usual natural history of SIDS… Taking this case in isolation I would have given the cause of death as 'not ascertained', ascribing it to brain damage following an unexplained collapse, also noting that the child's mother found him both on that occasion and when he subsequently died." 28 Professor Herdson observed: "In my opinion, [in relation to Patrick Folbigg's death], the history of a life threatening episode with subsequent abnormalities would be most unusual for a death to be due to so-called Sudden Infant Death Syndrome and the cause of death in this case is more accurately undetermined." 29 Professor Busuttil's opinion, in summary, was as follows: · This death should not have been attributed to SIDS. · It should not have been attributed to asphyxia in the absence of typical asphyxial signs at autopsy. · There was a brain condition, which could have given rise to serious life-threatening convulsions, and death could have occurred in the course of these convulsions. · The diffuse generalised focal brain damage present could have been the result of a viral infection of the brain, which has healed and it would be almost impossible to specifically identify this cause weeks later – an (sic) encephalitis. This disseminated brain damage could also have resulted from depletion of the oxygen supply to the brain, and therefore imposed upper airways obstruction lasting for a period of minutes. · It is unlikely that this brain damage resulted from a shaking injury. · No congenital metabolic problem was conclusively shows (sic) to be present in this child." 30 Professor Ouvrier, a paediatric neurologist, provided a report in which he stated: "The clinical history and findings at admission (18 October) coupled with the early onset of seizures which became intractable would be in keeping with encephalopathy due most likely, in my opinion, to an asphyxial episode… The subsequent evolution of the case with episodic tonic upgaze, seizures and decrease in visual attention would have been consistent with brain damage suffered during the event leading to the (October) admission. The most plausible explanation of the series of events is that there was an acute asphyxial event on the morning of 18/10/1990. Such an event could have been a 'near miss' SIDS (ALTE) or could have been due to deliberate suffocation of the infant." Further, "The pathological findings at autopsy would have been consistent with damage due to a serious hypoxic event suffered at the age of 4 months but I cannot exclude the possibility that the findings could have possibly been caused by shaking or trauma since this may sometimes cause apnoea… The final event appears to have been a further asphyxial episode without clear explanation." Sarah 31 Dr Ophoven said: "Although the classic classification of SIDS includes children under 1 year of age, this is not the age range accepted by most forensic pathologists and a sudden unexpected infant death, greater than 6 months from the SIDS condition would be considered atypical and by essentially 1 year of age would be excluded. It is my opinion that Sarah's death is most consistent with death by suffocation." 32 Professor Berry observed: "Taken in isolation, the death of Sarah may be ascribed to the 'Sudden death syndrome'. The post-mortem findings were consistent with that diagnosis. However, at 10 months of age she was older than most SIDS, the majority having occurred by 6 months of age. That alone is reason for closely scrutinizing the circumstances. I would probably give the cause of death in isolation as SIDS, with misgivings." 33 Professor Herdson noted: "[In relation to Sarah Folbigg's death], I concur with…Associate Professor John MN Hilton…where the findings taken in isolation could be diagnosed as Sudden Infant Death Syndrome, and assessment of the subsequent analysis provided by Professor Peter Jeremy Berry… and Dr Janice Jean Ophoven." 34 Professor Byard was unsure of the significance of the congested uvula, and said: "Given the above points, with no abnormal findings present at autopsy, I would have to label the cause of death as 'undetermined', with an autopsy finding of narrowing of the upper airway". 35 Professor Busuttil's opinion, in summary, was: · No anatomical or other cause of death was found. · This death approximates most of the four death being reviewed, a typical death from SIDS. · The presence of the congested uvula may have produced some upper airway obstruction. Laura 36 Dr Ophoven said: "It is my opinion to a reasonable degree of medical certainty [that is, beyond reasonable doubt] that Laura Folbigg did not die of the condition known as Sudden Infant Death Syndrome. In my opinion, she does not fall within the age range associated with SIDS and would not be considered for the diagnosis of SIDS for that reason in and of itself. It is my opinion that Laura's death is most consistent with death by suffocation." 37 Professor Berry said: "[In respect of Laura Folbigg], it is recognised that an inflammatory infiltrate in the heart muscle is also quite commonly found in those who die of other causes, for example in road traffic accidents. It has been described as an incidental finding in suffocation. An inflammatory infiltrate in the heart must therefore be quite common in the general population and probably accompanies some common childhood illnesses. The finding of an inflammatory infiltrate in the heart [as was found in Laura's heart] does not necessarily mean it was responsible for death." He also stated: "Nevertheless, taken in isolation I would have ascribed this death to myocarditis recognising that although the infiltrate was quite extensive, I could not see actual damage to the heart and muscle." 38 Dr Alan Cala, a Forensic Pathologist, who conducted the post-mortem examination of Laura Folbigg made the following statement: "Non-accidental asphyxia in the form of deliberate smothering must be considered as a possible cause of death for Laura Folbigg, and as possible cause of death for the other Folbigg children as well. I remain very suspicious that all four Folbigg children may have died as a result of a deliberate smothering. The medical evidence, however, does not allow me to take this any higher than a suspicion of deliberate smothering." The inflammatory infiltrate in the heart, consistent with myocarditis, he said, "may represent an incidental finding". 39 Professor Herdson added: " I concur with…Dr Allan D Cala… where the cause of [Laura Folbigg's] death was undetermined… and I further agree with Dr Cala that his finding of myocarditis is consistent with Laura's recent illness and is probably incidental." 40 Professor Busuttil said, in summary: · This death should not have been classified as SIDS. · There is a myocarditits which although may be completely incidental could also have caused serious heart problems and even death acutely and unexpectedly. · This condition could not have been induced by imposed airways obstructions of this child either recently prior to death or previously." 41 Professor Byard stated: "Given the finding of extensive myocardial inflammation with no abnormalities present I would have attributed the death to myocarditis. An identical conclusion would be drawn by most pathologists according to Professor Berry." 42 It can be seen from the foregoing, that these opinions depended on an assessment of the post mortem findings and pathology considered individually in each case. I next turn to the overall assessment of the expert witnesses. 43 Dr Ophoven observed: "It is well recognized that the SIDS [Sudden Infant Death Syndrome] process is not a hereditary problem and the statistical probability that 4 children in one sibship could die from SIDS would be infinitesimally small." 44 Professor Berry's view was as follows: "The sudden and unexpected death of three children in the same family without evidence of a natural cause is extraordinary. I am unable to rule out that Caleb, Patrick, Sarah and possibly Laura Folbigg were suffocated by the person who found them lifeless, and I believe that it is probable that this was the case." 45 Dr Cala concurred with the following statement from the American Academy of Pediatrics [ Pediatrics , Vol. 94 Number 1, July 1994, pp 124 to 126]: "There is a small subset of infants who die unexpectedly, whose deaths are attributed to SIDS, but who may have been smothered or poisoned. Autopsy cannot distinguish death by SIDS from death by suffocation. A study of infants suffocated by their parents indicates that certain features should raise the possibility of suffocation. These include previous episodes of apnoea (cessation of breathing) in the presence of the same person, previous unexplained medical disorders such as seizures, age at death older than 6 months and previous unexpected or unexplained deaths of one or more siblings or the previous death of infants under the care of the same, unrelated person." 46 He also said: "If homicidal acts have been committed, it is most likely these acts have been in the form of deliberate smothering, whether deliberately or accidentally inflicted may leave no trace. There are no specific post-mortem findings for smothering." 47 Professor Herdson, when taking all 4 deaths into account, said: "I am unaware that there have ever been three or more thoroughly investigated infant deaths in one family from Sudden Infant Death Syndrome. Based on all the material that I have reviewed relating to these four infant deaths, in my opinion all four infants probably died from intentional suffocation. · In drawing this conclusion, apart from my comments above, I would draw attention to the wide age range of the children at the time of the initial observed events or deaths, twenty days for Caleb to approximately nineteen months for Laura. · The fact that two infants, Patrick on 18.10.90 and Laura on 1.3.99, were found moribund rather than dead is not the pattern associated with Sudden Infant Death Syndrome" 48 Dr Susan Beal, a paediatrician, made the following statement: "Based on the records I have examined in regards to the family Folbigg, I have no hesitation in saying I believe that all four siblings were murdered… As far as I am aware there has never been three or more deaths from SIDS in the one family anywhere in the world, although some families, later proved to have murdered their infants had infants who were originally classified as SIDS." 49 Professor Busutill observed: "9.3 As far as one can ascertain, there was no congenital metabolic abnormality demonstrated in any or all of these children that could have caused them to die suddenly and unexpectedly. 9.4 These deaths are not all due to SIDS, and with exception of the third death other conditions, which could [be] life-threatening, were present and should have been taken into consideration by the pathologist and by the Coroner in coming to an eventual cause of death. 9.5 It certainly cannot be said, indeed beyond reasonable doubt, that these deaths were irrefutably due to imposed or induced airways obstruction, as by suffocation. 9.6 In three of these deaths such a possibility should have carefully considered on pathological grounds in the differential diagnosis as one possibility among many; it certainly is not the only possible explanation for these deaths because of the presence of other physical disease which could have caused sudden unexpected death." 50 Professor Byard, a specialist Forensic Pathologist and Consultant Paedeiatric Forensic Pathologist observed: "The autopsy findings, [in relation to each child] cannot be taken in isolation and with the occurrence of 4 deaths within the same family and police concerns I would list the causes of death as follows: 1. Caleb: Undetermined, with laryngomalacia; 2. Patrick: Undetermined, cannot exclude epilepsy; 3. Sarah: Undetermined, with narrowing of the upper airway; 4. Laura: Undetermined, cannot exclude Myocarditis. In my view the critical issue in the pathology of these cases is the presence of underlying conditions which are known to cause sudden death in young children and babies. I am certainly concerned that there may have been inflicted suffocation but could not state unequivocally that this had occurred, and could not agree that their autopsies have failed to 'identify any known natural disease or disease processes that could explain the sudden deaths', as has been stated by Dr Ophoven. Although these cases are discussed in several of the expert reports as SIDS deaths they cannot, by definition, be regarded as such, either on their own or together. Thus, comments on the significance of the presence or absence of SIDS risk factors and use of statistics derived from SIDS deaths are not applicable. The unusual background of this family with many issues of concern does not negate the fact that potentially significant organic illness was present in these children. Upper airway narrowing, epilepsy and myocarditis may have been coincidental to their deaths, but alternatively may have been causative or contributory; unfortunately this issue cannot be clarified from the autopsy records. Given the information that I have been provided with I simply cannot see how the significance of these conditions can be down-played as potential causes of death, no matter how worrying the circumstances are." 10 The primary judge set out the co-incidence notice as served by the Crown, as follows: "Notice is given that the Prosecution presently intends to adduce 'coincidence' evidence pursuant to the coincidence rule in sub-section 98(1) of the Evidence Act 1995, ie. Evidence that 2 or more related events occurred to prove that, because of the improbability of the events occurring coincidentally, a person did a particular act or had a particular state of mind. 1. The 'person' referred to in the proceeding (sic) paragraph is Kathleen Megan FOLBIGG. 2. The substance of evidence of the occurrence of the related events is contained within the following documents which previously have been served upon you. The Crown alleges that the coincidence evidence establishes: (i) that each of the accused's children died/had an ALTE (Apparent Life Threatening Event) in a similar way (ii) that each of the accused's children died/had an ALTE from the same cause (iii) that the accused killed/caused an ALTE to each of the four children by asphyxiating them with the intent to kill or do GRIEVOUS BODILY HARM to them. (iv) that the accused's four children did not die from Sudden Infant Death Syndrome or any other illness, disease or syndrome." 11 He continued: 62 The material relied upon by the Crown as coincidence evidence is that which relates to similarities in the circumstances concerning the death or ALTE of each child, as identified in a chart prepared by it, namely that: (i) each child was under 2 years of age at the time of death or ALTE (and it may be noted, additionally, that three such deaths and one ALTE occurred in the first year of life); (ii) each death occurred at a time which is unusual for a SIDS event; (iii) each death occurred in the child's own cot or bed; (iv) each death or ALTE occurred during a sleep period; (v) each child was last seen alive by the accused; (vi) each child was found not breathing by the accused, and in relation to those who died in the night, she claimed to have observed from a distance, and in the dark, that they had stopped breathing; (vii) only the accused was awake or present at the time when each child was found dead or not breathing; (viii) there was, in each case, a short interval between the time when the child was last claimed to have been seen alive by the accused, and the time when he or she was found lifeless or not breathing properly; (ix) in relation to the children who died in their cots or had an ALTE in the night, the accused had got up to go to the toilet, and in some cases had returned to bed, before getting up again and sounding the alarm; (x) the accused had failed to pick up or attempt to resuscitate any of the children after the discovery of his or her death or cessation of breathing (subject to her claim to have done so in relation to Laura); (xi) when each child was found he or she was warm to the touch; (xii) there were no signs of any injury found on any child; (xiii) no major illness preceded the death or the ALTE in any of the cases; (xiv) each of Caleb, Sarah and Laura gave every appearance of being normal and healthy before his or her death, as had Patrick before his ALTE; (xv) the sleep studies for each child were normal (save for Caleb, who by reason of being the first born was not the subject of any such study); (xvi) the tests for any inherited and/or biochemical disorder or metabolic abnormality were negative in each case; (xvii) the death or ALTE in each case, arose from an hypoxic event; (xviii) the sleep monitors, which had been provided following the earlier deaths and ALTE, were not in use at the time of death in the case of Sarah and Laura; and (xix) the accused had shown acute irritation in relation to each child, or appeared to have been in a condition of stress, before the death or ALTE. 12 The primary judge referred to relevant statutory provisions, as follows: 70 The coincidence rule is now enshrined in s 98 of the Evidence Act , which provides, relevantly (notice having been given), as follows: " 98 (1) Evidence that 2 or more related events occurred is not admissible to prove that, because of the improbability of the events occurring coincidentally, a person did a particular act or had a particular state of mind if: (a) … (b) the court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. (2) For the purposes of subsection (1), 2 or more events are taken to be related events if and only if: (a) they are substantially and relevantly similar, and (b) the circumstances in which they occurred are substantially similar." 71 If this test is passed, then before the evidence can be led it must also pass through the hurdle of s 101(2) as well as that contained respectively in s135 and s137 of the Act. S 101(2) requires that its probative value (to a fact in issue) "substantially outweighs any prejudicial effect it may have on the defendant." 72 Under s 135, the Court has a general discretion to refuse to admit the evidence: "if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party, or (b) be misleading or confusing, or (c) cause or result in undue waste of time;" and, under s 137, it is bound to refuse to admit the evidence if "its probative value is outweighed by the danger of unfair prejudice to the defendant". 73 The "probative value " of evidence is defined in the Dictionary to the Act as " …the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue" – here the probability that the death of each child, and of Patrick's ALTE, was due to asphyxiation. The inclusion of the word " rationally ", in the definition, is of importance, having regard to the need for consideration to be given, both to the force of the evidence, and to the question of unfairness associated with any risk of it being used in a way that is not logically connected with the relevant issue, or of it being given undue weight in the resolution of that issue: R v Lockyer (1996) 89 A Crim R 457 at 460, and R v Colby [1999] NSWCCA 261. 13 At par.[81] of the judgment, the primary judge accepted the proposition that co-incidence evidence must be excluded unless, taken in conjunction with the other evidence, its only rational explanation was the inculpation of the accused in the offence in question, having referred inter alia to Pfennig v. The Queen (1995) 182 CLR 461, R v. WRC [2002] NSWCCA 210 and R v. Joiner [2002] NSWCCA 354. 14 The primary judge's main conclusions are set out at pars.[106] to [109] of the judgment, as follows: 106 When considered in the context of the remaining circumstantial evidence, and particularly the diary extracts, which I have highlighted, it is my view that the requirements of ss 98 and 101(2), as noted above, have been met in the present case. 107 What is critical, it seems to me, is that the medical evidence is part of a circumstantial case, in which the jury might properly take into account the following: (a) The infrequent incidence of SIDS; (b) The rarity of repeat incidents of SIDS and of unexplained infant deaths or ALTE's within one family; (c) The absence of any metabolic abnormality in any of the children, let alone a common abnormality; (d) The fact that each was a healthy child and that such physical or medical conditions, as were observed post mortem, were unlikely causes of death; (e) The absence of any sleeping abnormality in the three children who were tested and/or monitored; (f) The fact that monitoring was provided but then ceased in relation to Sarah and Laura – a matter of some importance in view of the diary entry of 25 August 1997; (g) The fact that two of the children were found by the accused within the very brief window between a child being found moribund and dead; (h) The fact that all children were found by the accused while they were still warm, even though in four of the five relevant instances this occurred at night; (i) The unexplained absence of Sarah and the accused at about 1 am, shortly before she was found dead; (j) The unusual behaviour of the accused in getting up from bed, leaving the room, returning, and then getting up again only to discover, in the case of some of the children, that they were moribund or lifeless; (k) The fact that she claimed to have observed, in the dark and from some distance away, that some of them were not breathing; (l) The stress and anger which the accused had expressed toward the children; (m) The fact that the accused would not nurse or endeavour to resuscitate the children when they were found; and (n) The diary entries including, in particular, the sections which I have emphasised in the extracts set out earlier in these reasons, so far as they may reveal an absence of love for, or a bond with, the children, an acceptance by the accused of her hand in their deaths, her black moods and stress, her fears as to the way she behaved when stressed, and any resentment which she may have held in relation to the curtailment of her outside activities by reason of the need to care for Laura. 108 In the light of the circumstances mentioned, this is not a case dependant entirely upon the medical evidence. Were it otherwise, then there could well have been a very real difficulty for the Crown in excluding natural causes, whether it be SIDS or the presence or the progression, of some physical defect or disease process, as a rational cause of death or of Patrick's ALTE. 109 In summary, the facts which have been identified by the Crown in relation to each of the deaths appear to me to be substantially and relevantly similar when considered in the absence of any common metabolic abnormality, or outward sign of injury, or otherwise life threatening disease or medical condition. When further considered in the light of what appears, prima facie, to be significant admissions by the accused, in the diaries concerning the deaths of some of the children, as well as the evidence concerning her moods and irritation, proximate to their deaths, then I am left with the view that the test in WRC, Joiner, and Pfennig is satisfied. The evidence would, in combination, be such, if accepted, that no reasonable view would remain open that would be consistent with the innocence of the accused. 15 The primary judge then considered whether the evidence on each count was admissible in relation to other counts as tendency and/or relationship evidence. He noted that its use as tendency evidence, though not as co-incidence evidence, would pre-suppose that a decision was first made that the applicant was responsible for one of the deaths of ALTE, and then that that decision would be relied on as supporting a decision that she was responsible for other deaths. The primary judge concluded that evidence of the applicant's conduct and attitude with and towards each child would be admitted into evidence as tendency evidence in relation to each count. SUBMISSIONS OF APPLICANT 16 No written grounds of appeal have been provided, but Mr. Zahra SC on behalf of the applicant has made extensive written and oral submissions. They indicate that the essential ground of the appeal is that the primary judge was in error in ruling that on each count evidence in relation to other counts would be admissible as coincidence or tendency evidence. 17 In the written submissions, Mr. Zahra submitted that the test of admissibility required that the evidence allow for no reasonable view of it consistent with innocence: see Pfennig. He pointed out that this was not a case where the Crown sought to rely on other proven homicidal acts to prove its case, as in Thompson v. The Queen (1989) 169 CLR 1. Rather, the Crown was seeking to prove asphyxiation in relation to each one of four deaths, by using evidence in relation to the other three, when in no case did the evidence in relation to just one of the deaths prove asphyxiation; and accordingly, the evidence lacked the probative force required by Pfennig: cf. R. v. Phillips [1999] NSWSC 1175. 18 Mr. Zahra submitted that the Crown wished to invite the jury to conclude that, whereas one event might be explicable in terms of a misadventure, the repetition of events made such an explanation implausible. This made the impermissible assumption that each event is of itself relevant in that it was a non-accidental death: see Sutton v. The Queen (1983-4) 152 CLR 528, Perry v. The Queen (1982) 150 CLR 580. 19 Mr. Zahra submitted that the primary judge erred in not identifying any sequence in assessing the admissibility of the similar fact evidence, and failing to identify any starting point for the process: he was wrong to say that this was a matter to be dealt with by Crown addresses, and then by the jury, when it had to be dealt with by the judge in determining the question of admissibility. The primary judge did not, as required by ss.98 and 101 of the Evidence Act, in relation to each count, first assess the probative force of the evidence, and then consider whether this evidence bore no reasonable explanation other than the guilt of the applicant on the offence charged. 20 In oral submissions before us, Mr. Zahra submitted that the primary judge made a further error in relying on medical evidence which would not be admissible at the trial because it was based not on medical expertise but on the medical experts' views on matters of probability and statistics: the view of some of the medical experts that the occurrence of four such deaths by natural causes was so improbable that they must have been caused by some unlawful act was a matter outside medical expertise and a matter which would be excluded as going to the ultimate question to be decided by the jury. In the case of some of the medical evidence relied on by the primary judge, the views of the experts as to the cause of death was tainted by that kind of reasoning: indeed, Mr. Zahra submitted, Dr. Ophoven and Dr. Beal did not rely on any other reasoning. Mr. Zahra submitted that, at least if one eliminated this unsatisfactory reasoning, the medical evidence in this case could do no more than raise suspicion; and in that respect, this case was indistinguishable from R v. Phillips. Mr. Zahra referred us to reports of a recent Court of Appeal decision in the matter of Clark, a previous decision in which had been reported as R v. Clark (2000) EWCA 54. In that recent decision, the English Court of Appeal overturned a conviction based on similar fact evidence of this kind, and the Court was invited to withhold judgment in this matter until the report became available, which was expected to be in about two weeks from the hearing of this application. 21 Mr. Zahra also submitted that the failure of the Crown and of the primary judge to identify any sequence in dealing with the similar fact evidence pointed up the real difficulty that would occur in leaving the questions to the jury: this difficulty and the confusion that was likely to be occasioned in leaving the matters to the jury could be considered part of the prejudicial effect of the evidence which had to be taken into account under s.101. SUBMISSIONS OF CROWN 22 Mr. Sexton SC submitted that s.101(2) of the Evidence Act posed the question of whether the probative value of the evidence substantially outweighed any prejudicial effect on the defendant, requiring a comparison of probative value and prejudicial effect rather than a rigid requirement that there be no rational view consistent with the evidence other than the guilt of the accused: see Pfennig at 516-7, 531-2 per McHugh J, R v. Leask [1999] NSWCCA 33 at [49]-[53], R v. Le [2000] NSWCCA 49 at [112]-[118], W v. The Queen [2001] FCA 1648 at [52]-[61], [101]-[105]. Further, Pfennig was decided on the common law, not on s.101(2); and the statutory test should be applied, not the High Court's view of the common law: see Leask at [53], R v. OGD (2000) 50 NSWLR 443 at [55]. 23 Mr. Sexton submitted that, even if the Pfennig test had to be satisfied, the primary judge was correct in finding that it was satisfied in this case. The applicant's submissions were incorrect in suggesting that the medical evidence had to be looked at in isolation, and in suggesting that it was necessary for the evidence in relation to any one event of death or ALTE to prove involvement of the applicant before it could be admissible in relation to other such events: see Makin v. Attorney-General for New South Wales [1894] AC 57, R v. Smith (1915) 11 Cr App Rep 229, R v. Geering (1849) 18 LJMC 215, R v. Grills (1954) 73 WN(NSW) 303. WHAT IS THE CORRECT TEST? 24 In WRC at [25]-[29], I said the following: 25 In my opinion, Pfennig is highly relevant to the effect of ss.97, 98 and 101 of the Evidence Act, in that the principles there stated concerning circumstances in which the probative force of similar fact evidence substantially outweighs its prejudicial effect are directly applicable to questions raised for decision by ss.101 and 137 of the Evidence Act: R v. AH (1997) 42 NSWLR 702. OGD does not suggest the contrary. 26 The essence of the approach to similar fact evidence, such as propensity evidence, established by Pfennig appears in the following passage from the judgment of Mason CJ, Deane J and Dawson J at 482-3: Because propensity evidence is a special class of circumstantial evidence, its probative force is to be gauged in the light of its character as such. But because it has a prejudicial capacity of a high order, the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence and ask whether there is a rational view of the evidence that is consistent with the innocence of the accused. (Hoch (1988) 165 CLR at 296 (where Mason CJ, Wilson and Gaudron JJ expressed agreement with the remarks of Dawson J in Sutton (1984) 152 CLR at 564). See also Harriman (1989) 167 CLR at 602). Here "rational" must be taken to mean "reasonable" (See Peacock v. The King (1911) 13 CLR 619 at 634; Plomp v. The Queen (1963) 110 CLR 234) and the trial judge must ask himself or herself the question in the context of the prosecution case; that is to say, he or she must regard the evidence as a step in the proof of that case. Only if there is no such view can one safely conclude that the probative force of the evidence outweighs its prejudicial effect. And, unless the tension between probative force and prejudicial effect is governed by such a principle, striking the balance will continue to resemble the exercise of a discretion rather than the application of a principle. 27 Plainly, that passage does not mean that the judge must look at the propensity evidence in isolation, and not admit it unless there is no reasonable view of the evidence so considered that is consistent with the innocence of the accused of the offence with which the accused stands charged. That approach would be quite inconsistent with the correct approach for considering circumstantial evidence, as explained in Shepherd v. The Queen (1990) 170 CLR 573; and the quoted passage proceeds by reference to the character of propensity evidence as circumstantial evidence. 28 On the other hand, nor can it mean that the judge must look at all the evidence in the case, including the propensity evidence, and admit the propensity evidence if and only if there is no reasonable view of all the evidence that is consistent with the innocence of the accused: that approach would disregard altogether the need for some special probative value of the propensity evidence. 29 In my opinion, what it must mean is that, if it first be assumed that all the other evidence in the case left the jury with a reasonable doubt about the guilt of the accused, the propensity evidence must be such that, when it is considered along with the other evidence, there will then be no reasonable view that is consistent with the innocence of the accused. That is, the propensity evidence must be such that, when it is added to the other evidence, it would eliminate any reasonable doubt which might be left by the other evidence. 25 In Joiner at [37], I adhered to what I said in WRC. 26 I note the criticism by McHugh J of the majority view in Pfennig, set out at 516 of that case: If evidence revealing criminal propensity is not admissible unless the evidence is consistent only with the guilt of the accused, the requirement that the probative value 'outweigh' or 'transcend' the prejudicial effect is superfluous. The evidence either meets the no rational explanation test or it does not. There is nothing to be weighed - at all events by the trial judge. The law has already done the weighing. This means that, even in cases where the risk of prejudice is very small, the prosecution cannot use the evidence unless it satisfies the stringent no rational explanation test. It cannot use the evidence even though in a practical sense its probative value outweighs its prejudicial effect. 27 I note also that Pfennig was decided on the basis of the common law, not s.101(2); and I accept that this Court must apply the statute, and not the common law as expounded by the High Court. However, the majority of the High Court in Pfennig plainly said that only if there was no rational view of the evidence consistent with the innocence of the accused could the Court safely conclude that the probative value of the evidence outweighed its prejudicial effect; and in my opinion that statement is applicable to the test stated by s.101(2). Accordingly, unless and until the High Court of Australia says differently, I think this Court must apply the Pfennig test. 28 I set out in WRC in the passages quoted how I understand the Pfennig test to operate. I would add that the test certainly does not require the judge to reach the view that the jury acting reasonably must convict: the judge must form his or her own view as to whether there is no rational view of the evidence, as it then appears to the judge, which is consistent with innocence, and the judge does not need to speculate as to how precisely that evidence may be affected by the way it is presented at the trial or by cross-examination, or how other minds might view it. Furthermore if, as the trial progresses, there are grounds for contending that the evidence as presented turns out to be substantially different from how it appeared at the time of the determination of admissibility or the joinder of counts, there may be a ground to apply for those questions to be re-considered. DID THE PRIMARY JUDGE ERR IN APPLYING THAT TEST? 29 The primary judge purported to apply the Pfennig test, so the next question is whether he erred in his application of the test. Dealing first with the submission concerning the medical evidence, in my opinion the primary judge was careful to base his decision only on so much of the medical evidence as was not in any way affected by statistical considerations in such a way as to be liable to be rendered inadmissible. In my opinion, this appears from pars.[82]-[83], and [97] and [142] of the judgment as follows: 82 It is next convenient to apply these principles to the evidence which the Crown expects to lead. As I currently understand that evidence, it will be the expert opinion of each of Drs Ophoven and Beal, and of Professors Berry and Herdson, that each child died of intentional suffocation. Drs Ophoven and Beal reach that conclusion without qualification, while Professors Berry and Herdson express that view as a probability. 83 The other experts, including Dr Cala, and Professors Byard and Busutill fall somewhat short of this, although they accept that deliberate smothering or induced asphyxia, cannot be excluded in any one of the 4 deaths or in Patrick's ALTE. What all experts do appear to exclude, in the light of what is now known, however, as a cause of any of the deaths or of Patrick's ALTE, is SIDS, or any underlying congenital metabolic abnormality. Moreover, while some other possible medical conditions have been identified, none of the experts are prepared to ascribe, as the cause of death or of the ALTE, any natural disease process, to the exclusion of other possible causes, including smothering. … 97 The present case differs in this respect. The critical circumstance in this case, and where it seems to me to differ from Phillips , is that it is sufficient for the Crown to point, in each case, to the evidence of each expert which would exclude SIDS as a cause; which would identify the improbability of the various incidental medical conditions which were observed post mortem as the cause of death or of the ALTE's, and which would then identify asphyxia, as a possible or probable cause of death. It appears to me to be enough, in a circumstantial case, for the Crown to establish that asphyxia was a possible cause of death, and that the findings on post mortem examination are, in the opinion of the experts following their independent review, consistent with that having been the causative mechanism. … 142 In conclusion, as I have observed, it is sufficient for this application that the expert evidence be limited in the way outlined, that is, to show that induced asphyxia was a possible and consistent cause of each death and ALTE. I would need to be persuaded that the Crown could take the next step, at least having regard to the reports as they presently stand, that it was in fact the cause of death, to the exclusion of any other cause as a rational possibility. That is the ultimate issue for the jury which seems to me to depend upon more than the medical evidence. In my opinion, what the primary judge is saying in those paragraphs is that there is little, if any, dispute in the medical evidence, in so far as it indicated that in each case medical considerations alone left a possibility that the cause was asphyxiation, this being a reasonable possibility and not a possibility which was merely remote or fanciful; and that there was no other cause which could be considered as something more than a reasonable possibility. The primary judge having approached the matter in that way, I think it is appropriate for this Court to do likewise, and consider whether, treating the medical evidence in that way, it considers the primary judge erred in holding that the s.101 test was satisfied. 30 In my opinion, the other principal submission of the applicant is based on a misconception of the principles concerning circumstantial evidence. As shown by Shepherd v. The Queen (1990) 170 CLR 573, it is of the essence of circumstantial evidence that the totality may prove a case beyond reasonable doubt whereas each piece of evidence considered on its own may prove nothing and may even be considered irrelevant in the absence of other evidence. In this case, if it be the case that it is only the occurrence of four deaths in similar circumstances that could prove that the applicant was responsible for any one of them, and that the evidence relating to any one of them without the evidence relating to the others would prove nothing, then this would not of itself mean that the Pfennig test could not be satisfied. 31 In my opinion, it is necessary in relation to each count for the Court to consider the evidence relating to that count in the absence of evidence relating to the other counts, and consider whether any deficiency of proof of the appellant's responsibility for the death or ALTE in question would be overcome by the evidence relating to the other counts, so that the latter evidence would leave no rational view consistent with innocence in relation to the particular count being considered. 32 The primary judge did not explicitly undertake that course, but in my opinion that is the substance and effect of what he did. Furthermore, my own view is that, on following that course in relation to each count, there would be a deficiency of proof of guilty in relation to each count without evidence concerning the other children, but that the additional evidence concerning the other children would leave no rational view consistent with innocence in relation to the particular count being considered. I say so essentially for the reasons given by the primary judge, especially the extreme improbability of four such deaths and one ALTE occurring to children in the immediate care of their mother, with asphyxiation being a substantial possibility and no other cause of death being anything more than a substantial possibility, without the mother having contributed to any of those deaths, particularly in the light of the diary entries referred to by the primary judge. The contribution to the death may have been an unlawful act amounting to manslaughter rather than murder, but that would be sufficient in my view to satisfy the Pfennig test, when manslaughter is an alternative verdict available on a charge of murder. 33 As to whether there would be prejudice arising from confusion from the way the matter was left to the jury, it seems to me that the following course could be taken. The jury could be asked to consider first whether there is any reasonable possibility that all deaths and the ALTE occurred by natural causes without any contribution from the applicant. If they do consider there is such reasonable possibility, that would be the end of the matter and a verdict of not guilty should be returned on all counts. If they consider there is no reasonable possibility that all incidents occurred by natural causes without a contribution from the mother, it would be pointed out that that conclusion does not mean that there was a contribution from the mother in each and every individual case, and it is necessary then to turn to consider the evidence in each individual case. The judge would then explain to the jury what evidence could be considered in relation to each count. There is a possibility of confusion, and I accept that this is prejudice within s.101, as well as ss.137 and 135. However, I think that the probative value of the evidence is such that it does substantially outweigh any prejudicial effect, so that the s.101 test is passed. In my opinion also, the evidence would not be excluded under s.137 or s.135. 34 In my opinion, in relation to each count, the evidence concerning the other counts and other children is admissible as coincidence evidence. That view is sufficient to justify refusing separate trials. It is not necessary to consider whether the evidence is admissible as tendency evidence. CONCLUSION 35 For those reasons, in my opinion the application should be dismissed. The fact of the application and the result may be published, but I would order that the reasons not be published until further order. 36 SULLY J: I agree with Hodgson JA. 37 BUDDIN J: I agree with Hodgson JA. ********** Last Modified: 06/02/2003 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.