R v Jeong Ming FOO [2008] NSWSC 587

New South Wales Supreme Court

CITATION : R v Jeong Ming FOO [2008] NSWSC 587

HEARING DATE(S) : 15, 16, 19, 20, 21, 22, 23, 26, 28 and 30 May 2008

JUDGMENT DATE : 12 June 2008

JUDGMENT OF : Harrison J

DECISION : Verdict of not guilty

CATCHWORDS : CRIMINAL LAW – Murder – s 132(1) Criminal Procedure Act 1986 - election by accused for trial by judge alone – 11 week old victim - son of accused – deceased died from diffuse axonal injury to brain caused by non-accidental acceleration/deceleration forces from shaking or impact – circumstantial case – reasonable alternative hypothesis - degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved not so high that the contrary could not reasonably be supposed – no satisfaction beyond reasonable doubt that the accused was the person who inflicted the injuries to the deceased that ultimately led to his death – not guilty verdict

LEGISLATION CITED : Criminal Procedure Act 1986

CATEGORY : Principal judgment

Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285 CASES CITED : Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367 Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573

PARTIES : Crown Jeong Ming Foo (Accused)

FILE NUMBER(S) : SC 4038/2007

COUNSEL : W L Robinson QC (Crown) P R Boulten SC (Accused)

SOLICITORS : Director of Public Prosecutions (Crown) Murphy's Lawyers Inc (Accused)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HARRISON J

12 June 2008

4038/2007 R v Jeong Ming FOO

JUDGMENT Introduction 1 This is a trial by judge alone following an election by the accused under s 132(1) of the Criminal Procedure Act 1986 made on 6 May 2008. That election, endorsed with the consent of the Crown, was filed in this court on 7 May 2008. 2 The accused is charged with the murder of his son You Qi Foo ("the deceased") who died on 31 August 2006. The deceased was born in January 2006 and was the second child of the accused and his wife Jui Ying Hoon. Their first son Dunyao was born in January 2003. 3 The accused was born in Singapore in 1973. He was married to Jui Ying Hoon in 2001. They came to Australia on a Permanent Residency Visa in May 2005. At the time of the events that give rise to the present charge, the accused was living with his wife and the deceased, together with his sister and her husband in a townhouse in Telopea, a suburb of Sydney. Their first son was temporarily living in Singapore with the accused's parents in anticipation of the birth of the deceased. 4 At about 11.30am on Tuesday 14 March 2006 the accused and his wife attended Dr Goh Chong Maw at the Meadowbank Medical Centre for the purpose of having the deceased vaccinated for tetanus, diphtheria, inactive poliomyelitis and hepatitis B as well as pneumococcal conjugate. He received two injections, one in each buttock. The deceased was apparently normal after the immunisation and Dr Maw detected no abnormality. 5 The deceased, who had also at all times before that been a normal healthy baby, would appear on one view to have had a mild reaction to the vaccine but in any event to have developed symptoms that made him irritable and increasingly sleepy although restless with a fever and he became uninterested in feeding. This continued for the next several days. On Sunday 19 March 2006 at approximately 3.00pm the accused and his wife took the deceased to their local general practitioner Dr Jeyaratnam at the Carlingford Medical Clinic for a consultation. The doctor advised them that the child was in a satisfactory condition but that if he deteriorated - in particular, if there was any lethargy, decrease in feeding, any further vomiting or bile stained vomitus - they should immediately take the child to Westmead Children's Hospital for treatment. Dr Jeyaratnam was of the opinion that on the day of the presentation the deceased was a reasonably healthy baby. 6 On the morning of Monday 20 March 2006 the condition of the deceased changed dramatically. It will be necessary to return to the circumstances in which this change occurred in more detail later in these reasons. Briefly, however, according to the accused, when he was carrying the deceased from the downstairs portion of the townhouse upstairs to hand him to his wife, the crying or breathing pattern of the deceased audibly changed and he appeared to go soft or limp in the arms of the accused. Rather than attempting to resuscitate the child, or call an ambulance to the premises, the accused and his wife drove immediately to the hospital where he was delivered into the care of the medical staff. 7 The deceased was presented to the Emergency Ward of Westmead Children's Hospital at approximately 9.00am on that day. His mother handed him to Sister Dollarhide at the triage desk. He was by then completely grey in colour, totally limp and was not breathing. It was later determined that the child had had a cardiac arrest. She hooked up the child to oxygen and commenced CPR. He was transferred to the ICU. It took approximately 45 minutes to revive the child. 8 The deceased was in due course found to have sustained injuries that included a right parietal skull fracture, subdural intracranial haemorrhages with subacute collection in the occipital region and posterior fossa, probably of a different age, suspected fractures of the seventh and eighth left ribs, the fourth and fifth right ribs, and a possible fracture of the left humerus. Subsequent examination of the deceased revealed bilateral intra-retinal haemorrhages and a shearing injury to sections of the brain consistent with, or suggestive of, a non-accidental injury such as violent shaking. The deceased was also found to have had early stage vitamin D deficiency with a mild elevation in parathyroid hormone and vitamin C deficiency with no evidence of scurvy. There was no evidence of osteopenia or osteogenesis imperfecta. 9 The deceased continued to be cared for at the hospital in a serious but stable condition for four months before being transferred to the Allawah Hospital at Bexley on 25 July 2006. He remained there until 31 August 2006 when he died from pneumonia secondary to injuries that he had suffered at some time prior to his presentation to Westmead Children's Hospital on 20 March 2006. The facts 10 Prior to the death of the deceased, the accused gave two electronically recorded interviews to the police and cooperated as well in the making of an audio/video recording of a walk-through of the Telopea premises where he resided with his wife and the deceased. These all became evidence without objection in the proceedings. A third electronically recorded interview with the accused on 9 December 2006 following his arrest on that day was also tendered without objection. It produced no significant material beyond an exercise by the accused of his right to remain silent. 11 The accused did not give evidence. However, his detailed version of the circumstances and of the events that took place between the date of the deceased's immunisation and the presentation to the Emergency Department of the hospital is to be found in the ERISPs conducted on 24 March 2006 and 31 March 2006 and the electronic recording of the walk through of the premises on 19 April 2006. These matters are set out and discussed in more detail below.