New South Wales Supreme Court CITATION : R v BW & SW (No. 1) [2009] NSWSC 529 HEARING DATE(S) : 18 May - 2 June 2009 JUDGMENT DATE : 3 June 2009 JUDGMENT OF : R A Hulme J DECISION : Applications refused CATCHWORDS : CRIMINAL LAW - procedure - murder - applications for directed verdicts of not guilty CATEGORY : Principal judgment Doney v The Queen (1990) 171 CLR 207 CASES CITED : May v O'Sullivan (1955) 92 CLR 654 R v Stokes and Difford (1990) 51 A Crim R 25 R v Styman; R v Taber [2004] NSWCCA 245 PARTIES : Regina v BW Regina v SW FILE NUMBER(S) : SC 2008/16466; 2008/15683 Mr P Barnett SC (Crown) COUNSEL : Mr M Austin (accused BW) Mr D Stewart (accused SW) Director of Public Prosecutions (Crown) SOLICITORS : LAC (BW) Advance Legal (SW) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST CORAM: R A Hulme 3 June 2009 2008/16466 R v BW 2008/15683 R v SW JUDGMENT 1 HIS HONOUR: The two accused are charged with the murder of their seven year old daughter "Ebony" who died of chronic malnutrition caused by starvation. 2 At the close of the Crown case yesterday afternoon, Mr Austin, counsel for the accused BW, and Mr Stewart, counsel for the accused SW, both made application for me to direct the jury to return verdicts of not guilty on the charge of murder. They both conceded that there was a parental duty of care in the accused in respect of the deceased and that there was evidence of an omission by the Accused to provide nourishment for the deceased or to secure medical attention for her that was a substantial cause of her death. However, they each submitted that there was no evidence capable of establishing the mental element the Crown has endeavoured to establish in this trial, that is that the accused, each of them, by their omission, intended to cause the death of Ebony, or that they realised that she would probably die but persisted with the omission to nourish her or get medical attention. 3 Very briefly stated the Crown case is that the accused were the parents of Ebony, who was aged 7 at the time of her death in November 2007. She had been born on 22 March 2000. The evidence is that they lived under the one roof with her at the time of her death and did so at all stages of her life up until that point. The deceased had two older sisters who also lived in the family home. 4 There has been a lot of evidence in the Crown case about contact between the deceased and various medical practitioners during her short life. She had a condition of global developmental delay and in April 2005 was diagnosed with autism. The autism brought about behaviours that were difficult for a parent to manage. In her early years she failed to thrive and was slow to reach various milestones including walking and speech. She was significantly underweight by reference to the normal ranges for girls of her age. She was subjected to a variety of medical testing and investigation that revealed no known medical cause for her small stature and low body weight. By March 2005, however, she was found to have increased in weight to an extent that placed her in the 75th percentile for girls of her age. She was described as well nourished. 5 Whilst, as I have said, there was a lot of evidence about the deceased being presented to various medical practitioners, there was also a lot of evidence of efforts by medical professionals that were made to assist the child with programs and interventions, for example speech therapy, that were either not taken up at all or not fully pursued by the parents. There was evidence of a lot of missed appointments and cancelled appointments. Arrangements were made for the deceased to enrol in a special school but she never attended. 6 There is evidence that on 14 February 2006, when the deceased was at the Sydney Children's Hospital for a minor surgical procedure, she was weighed and found to be 20.5 kilograms, which was in the 75th percentile. Dr Dimitra Tzioumi, a paediatrician, gave evidence that if she had maintained her weight in that percentile she would have weighed in the order of 26 kilograms in November 2007. Dr Tzioumi also said that there was no known medical reason why she could not have maintained a weight at that percentile if she had continued to be properly nourished. 7 Dr Stamatios Ktenas was a general practitioner who attended to the deceased from the age of 12 months. He provided various vaccinations and regularly took measures of height and weight and attended to general medical needs. He also provided referrals to various specialists. He noted that the child was underweight when he saw her between March 2001 and September 2003. He did not see her again until February 2006. Other doctors had seen the deceased in the intervening period. When Dr Ktenas saw her again in February 2006 he noted that she had become quite a chubby 6 year old. He saw her again the following month and gave her the final vaccinations required before she entered school. He said she still looked as healthy as when he saw her the previous month. He did not see her again. As far as is known, the next doctor to see the deceased was the forensic pathologist. However, there is evidence of each of the Accused attending upon doctors for their own medical needs in that period. 8 There is no evidence as to when the death occurred apart from what has been disclosed by the two accused. What they have told investigators is to the effect that the child was fine on the evening of Friday 2 November 2007 but that when SW rose on the morning of Saturday 3 November 2007 at around 7.00am she found the child to be dead. 9 Ambulance officer Diamond said that he asked the parents whether Ebony had been unwell or whether there was any reason to expect she was going to pass away. He said that BW told him, "she was playing last night and everything was okay". SW added, "she hasn't coped with the move up from Sydney very well. She had vomiting and diarrhoea over the past week and hasn't eaten well since the move from Sydney". I should add at this point that the family had lived for most of the deceased's life at Matraville but that at the end of August 2007 they moved to Hawks Nest. 10 BW told police in an interview on 5 November 2007 that he was out for part of the day on Friday 2 November 2007. Before he left he saw Ebony eat breakfast and she had some milk or juice with it. He said she seemed physically well at that time. He arrived home late in the afternoon. Ebony did not appear to be ill in any way. She was eating her evening meal. He last saw her at about 8 o'clock sitting on the lounge staring at the television with a blank look on her face. His wife then took her to bed. He said that since the family moved to Hawks Nest the child did not appear to be as happy as before. Her eating patterns changed. She was still drinking "a stack of fluids" and eating "a lot of big breakfasts" but did not have as much for lunch or dinner. He said she looked a little bit thinner but not a lot. He said the child had not seen a doctor since they came to Hawks Nest because he did not think there was any need. He said in the last couple of days she was happy, bubbly and smiling. 11 During the course of police executing a search warrant at the Hawks Nest home on 9 November 2007, SW told investigators that, in effect, the child used to eat sometimes "massive meals" but that after moving to Hawks Nest "she started off still with a rather big appetite, and then she just went down, down, down, down and she didn't, wasn't really interested (in) anything at all". She said the child was rarely sick and apart from a few sniffles, the cold or the flu, she had been fine. She described the child as being somewhat lost in the new environment and would be walking around trying to find familiar things. She said the child was just picking at her food. She would eat things like baked beans but whereas in the past she would have a whole bowl, she was just having a couple of spoonfuls and then would push the food away. She was asked whether she became concerned when the child started going off her food and she said that she was not. She thought she was just adjusting to the new environment and that she would pick up and be alright. There had been times in the past when she had lost weight and SW was able to build her up again. She was asked if she noticed whether the child was losing weight and she said it was hard to tell. She said she "had a hell of a lot to drink". Asked whether the child became quite frail she said, "No, well, she was still walking around. She was still making a sound. She was still gesturing as to what she needed. She was still getting up, going to the fridge … She was still eating, she was still drinking. She was still doing everything she was doing before and everything but not to the extent that she… would normally do". 12 The evidence of the forensic pathologist, Dr Kasinathan Nadesan, which must be taken into account when taking the Crown case at its highest, was to quite a contrary effect. He said that when he first saw the deceased in her bedroom at the Hawks Nest house on the evening of Saturday 3 November 2007 he saw "a little child dead, obviously, in an extreme degree of emaciation and wasted and dehydrated. It looked almost like a mummy to me". The body was dressed in clothing and there was a very strong smell of urine and other unpleasant body odours emanating from the clothing and the body. Staining on the clothing and the bedding was, he thought, possibly from a combination of vomit and faecal stains and body fluids. Even after the clothing was removed and the body was washed at the morgue there remained a strong smell of urine. The hair was long and heavily matted with dirt and various solid particles trapped within it. There was an absence of rigor mortis because there were virtually no muscles, they had wasted away. There was little subcutaneous fat. The eyeballs were sunken. Much of the body was just skin and bones. The abdomen was what he described as scaphoid which he explained meant it had "sort of gone inside, that's usually a common finding in people who have been malnourished, emaciated and wasted and also it gave a bluish green discolouration indicating that decomposition had set in". On post mortem examination he found some evidence of atrophy of the brain and some internal organs, indicating chronic or long term malnourishment. He found the lungs to be in a state indicative of someone who did not go outdoors and be exposed to the environment. There was a very hard piece of faecal material in the large bowel, a typical finding in a person who has not taken any food or nutrition over a period of time. 13 Dr Nadesan's opinion was that death was due to starvation and neglect. He said that it was most likely that the deceased would not have been able to get out of bed or move unassisted, not just in the preceding 24 hours but likely in the weeks preceding her death. He then qualified that by saying "maybe a couple of weeks ... I cannot comment to that extreme, but within the preceding few days, certainly she would have". He very much doubted that she was capable of feeding herself for days to weeks prior to her death. He said that it was very likely that the deceased "would have been in a stuporous, semiconscious, or even unconscious state during the last few days. Maybe semiconscious or drowsy, sort of, during the last few weeks". 14 In cross examination, Dr Nadesan said that at most he would have expected the deceased to have been capable of little flickering movements but incapable of any real purposeful movements. He was asked about the proposition of the child having been able to walk to a lounge, sit down and watch television the night before her death and he said that was "totally impossible". 15 Dr Edward O'Loughlin, a specialist paediatric gastroenterologist at the Sydney Children's Hospital, was also of the opinion that the cause of death was malnutrition caused by starvation and profound neglect. Various features of the body indicated to him that there had been severe vitamin deficiency. The finding on post mortem of faecal material in the child's matted hair, the pervading smell of urine and the staining of the bedding material supported the finding of neglect. The lack of any food in the gastrointestinal tract indicated that it had been more than 24 hours since any solid food had been consumed. He said that for the child to get to the emaciated state in which she was, it would have taken a couple of weeks if she was getting no food or many months if she was receiving some food. He said, "she was very severely wasted I would have said that would have taken weeks, as a minimum, to get into that state". The presence of hard faecal material in the large intestine indicated there was very little contribution from dietary input. He said, "It has been there for a long time and it indicates lack of solid food intake". It would have been there for days to a couple of weeks. Dr O'Loughlin had come into contact with many hundreds of children who were suffering from malnutrition for a variety of reasons in his 25 years of practice but he said that Ebony was the most malnourished child he had ever seen. He said that malnutrition was possible to treat and the patient saved even if only hours from death. The level of muscle wastage indicated to him that she would have been incapable of getting out of bed, walking, feeding or dressing herself and that would have been evident for days or weeks. He thought it very unlikely that in her last days she would have been capable of eating or drinking. 16 Dr O'Loughlin was taken to the evidence elsewhere in the Crown case that indicated that in the period March 2005 to February 2006 Ebony appeared well nourished. He said that this indicated that the child did not have a significant acute nutritional problem and she exhibited a capacity at that age to be normally nourished. This suggested to him that she probably did not have an underlying chronic disorder going way back to earlier in life leading to her malnutrition. She had exhibited a capacity to put on and maintain a reasonable weight. The fact that she deteriorated from that appearance to the post-mortem appearance in the space of two or three years, indicated to him that some process intervened to cause her to become severely malnourished, unlikely to be related to a chronic disease. The doctor was of the opinion that because of the severe muscle wasting she would have been unable to sit and even unable to support her own head, let alone be able to stand. Dr O'Loughlin was asked about the photographs taken of the deceased at the house and later at the post-mortem and asked if her appearance in them was something that occurred in the 24 hours or the three to four days preceding her death. He said, "Definitely not". 17 Taking the Crown case at its highest, as I must do in considering an application for a directed verdict of acquittal (see Doney v The Queen (1990) 171 CLR 207), I must proceed on the basis that the jury would accept the evidence of Dr Nadesan and Dr O'Loughlin. That evidence would show that the accounts given by each of the accused to the police about the appearance and behaviour of the deceased in the period immediately preceding her death were demonstrably false. 18 Counsel each submitted that it was necessary for there to be direct evidence of the state of mind of the accused before the mental element of murder could be established. It was submitted that it is not sufficient that any reasonable person in the position of the accused would have the required mental state, and this submission was focussed on the realisation of the probability of death. I accept that. The test is a subjective, rather than objective one: R v Stokes and Difford (1990) 51 A Crim R 25. 19 Mr Stewart sought to contrast the facts of this case with those in R v Styman; R v Taber [2004] NSWCCA 245 on the basis that in that case the accused did something that put the deceased in the danger that ultimately led to her death and in this case the danger arose without any positive act by the accused. I understand the submission was intended to be that where there is some act by an accused that puts a person in peril of death, there is no need for there to be direct evidence of the person's mental state but where there is an absence of such an act it is necessary for the Crown to point to some direct evidence. I do not accept the submission that there is a requirement for direct evidence in any situation in which the Crown must prove an intention or some other relevant mental state. No authority was cited in support of such a proposition. It is often the case that there is no such direct evidence as to what was operating in an accused's mind at the time the person did some act or failed to do some act. That is why juries are directed in such a situation that the state of mind of the accused can be established by inference from the surrounding circumstances. 20 The suggested direction in the Criminal Trials Bench Book on the subject of proof of intention includes reference to the drawing of inferences from the circumstances attending the event in question and the conduct of the accused before, during and after the event. It includes reference to the person's acts themselves providing the most convincing evidence of the person's intention. It also suggests that a jury be directed that "where a specific result is the obvious and inevitable consequence of a person's act, and where the person deliberately does that act, the jury may readily conclude that the person did the act with the intention of achieving the specific result. With modification of the direction, including to refer to omissions rather than acts, that seems to me a most appropriate direction to give in the present case. 21 The evidence I have reviewed is, in my view, clearly capable of establishing that the appearance and behaviour of Ebony prior to her death was such that anybody, the accused included, would have realised that she was in dire jeopardy and that without nourishment and/or medical attention she would not just probably but certainly die. One need only just look at the photographs of her in Exhibit C to accept that. The description of the body as just a skeleton covered in skin is most apt. The evidence of Dr Nadesan and Dr O'Loughlin that in her last day or days the child would most likely have been incapable of movement, incapable of eating or drinking, and would have been in a semi-conscious or even comatose state is powerful confirmation that any person who had the duty of care that the accused did and who, by the omission to do anything about it, allowed that state of affairs to continue, either intended that the child die or realised that she would probably die. In my view it would be open to the jury, if they accept this type of evidence that the Crown relies upon, to draw the inference that the accused must have known, and did in fact know, that the child would probably die if he or she did nothing to provide her with nourishment and/or obtain medical treatment for her. The jury could thus be satisfied of the reckless indifference element, or be satisfied that with a realisation that the child would die and by doing nothing to prevent it, there was an intention that the child die. There is sufficient evidence upon which each accused may be convicted of the charge of murder: May v O'Sullivan (1955) 92 CLR 654. 22 These are my reasons for refusing the applications made yesterday at the close of the Crown case. ********** 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.